"Bail is the rule and jail is an exception" is a settled law: Supreme Court

In Jalaluddin Khan Vs. Union of India, Justices Abhay S. Oka and Augustine George Masih of the Supreme Court heard the appeal of the appellant who is being prosecuted for the offences punishable under Sections 121, 121A and 122 of the Indian Penal Code (IPC) and Sections 13, 18, 18A and 20 of the Unlawful Activities (Prevention) Act (UAPA), 1967. A charge sheet was filed on January 7, 2023. The appellant applied for bail before the Special Court under the UAPA, which was rejected. Hence, the appellant and some co-accused applied for bail before the High Court. 

The prayer for bail made by the appellant was rejected by Patna High Court's bench of Justices Ashutosh Kumar and Alok Kumar Pandey, while bail was granted to a co-accused. The High Court's verdict was authored by Justice Kumar. As far the accused who was granted bail by the High Court is concerned, Justice Kumar observed, "Merely being a member of a banned organization, would not justify rejection of bail when the Trial is likely to continue for a longer time." The judgement reads: "Considering the overall materials against appellant/Nooruddin Jangi @ Advocate Nooruddin Jangi [Cr. Appeal (DB) No. 749 of 2023], we deem it appropriate to set-aside the order dated 01.05.2023, refusing to grant him bail." Prior to High Court's judgement, the prayer for bail of Advocate Nooruddin Jangi in Special Case No. 07 of 2022/R.C. No. 31 of 2022, arising out of Phulwari Sharif P.S. Case No. 827 of 2022 was rejected by Special Judge, N.I.A., Patna vide order dated 01.05.2023.

With regard to Jalaluddin Khan, the Supreme Court observed: "we must mention here that the Special Court and the High Court did not consider the material in the charge sheet objectively." It further said: "When a case is made out for a grant of bail, the Courts should not have any hesitation in granting bail. The allegations of the prosecution may be very serious. But, the duty of the Courts is to consider the case for grant of bail in accordance with the law. 'Bail is the rule and jail is an exception' is a settled law. Even in a case like the present case where there are stringent conditions for the grant of bail in the relevant statutes, the same rule holds good with only modification that the bail can be granted if the conditions in the statute are satisfied. The rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail. If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Article 21 of our Constitution. Hence, the impugned orders are set aside. The appeal is allowed. The appellant is directed to be enlarged on bail on the terms and conditions as may be fixed by the Special Court. For that purpose, the appellant shall be produced before the Special Court within a maximum of 7 days from today. The Special Court shall enlarge the appellant on bail until the conclusion of the trial on appropriate terms and conditions."  

The judgement was authored by Justice Oka. It was delivered on August 13, 2024. Mukta Gupta, the appellant's senior counsel relied on Court's decision in Shoma Kanti Sen v. State of Maharashtra and another (2024).

Relying on the Court's decision in Thwaha Fasal v. Union of India (2022), the Court examined the material forming part of the charge sheet to decide whether there are reasonable grounds for believing that the accusations against the person applying for bail are prima facie true. While doing so, the court is required to take the charge sheet as it is. 

The Court observed: "There is nothing in the charge sheet which shows that the appellant has taken part in or has committed unlawful activities as defined in the UAPA. There is no specific material to show that the appellant advocated, abetted, or incited commission of any unlawful activities. A terrorist act is defined in Section 15(1). Assuming that the co-accused were indulging in terrorist acts or were making any act preparatory to the commission of terrorist acts, there is absolutely no material on record to show that there was any conspiracy to commit any terrorist act to which the appellant was a party. There is no material produced on record to show that the appellant advocated, abetted, advised, or incited the commission of terrorist acts or any preparatory activity." 

It further observed: "We must note here that the appellant’s son conducted the negotiations for giving the first floor on rent. Taking the charge sheet as correct, it is not possible to record a prima facie finding that the appellant knowingly facilitated the commission or preparation of terrorist acts by letting out the first floor premises. Again, there is no allegation in the charge sheet against the appellant that he organised any camps to impart training in terrorism."

The Court recorded: "There is not even an allegation in the charge sheet that the appellant was a member of any terrorist gang. As regards the second part of being a member of a terrorist organisation, as per Section 2(m), a terrorist organisation means an organisation listed in the first schedule or an organisation operating under the same name as the organisation was listed. The charge sheet does not mention the name of the terrorist organisation within the meaning of Section 2(m) of which the appellant was a member. We find that the PFI is not a terrorist organisation, as is evident from the first schedule."

The Court concluded: "Therefore, on plain reading of the charge sheet, it is not possible to record a conclusion that there are reasonable grounds for believing that the accusation against the appellant of commission of offences punishable under the UAPA is prima facie true. We have taken the charge sheet and the statement of witness Z as they are without conducting a mini-trial. Looking at what we have held earlier, it is impossible to record a prima facie finding that there were reasonable grounds for believing that the accusation against the appellant of commission of offences under the UAPA was prima facie true. No antecedents of the appellant have been brought on record. The upshot of the above discussion is that there was no reason to reject the bail application filed by the appellant."

The application for bail of Jalaluddin Khan was rejected by the Special Judge, N.I.A., Patna in Special Case No. 07 of 2022/R.C. No. 31 of 2022, arising out of Phulwari Sharif P.S. Case No. 827 of 2022, by order dated 15.04.2023. It was rejected by the High Court as well. Drawing on Supreme Court's decision in National Investigation Agency Vs. Zahoor Ahmad Shah Watali; (2019) 5 SCC 1, the High Court had not found "any folly with the conclusion of the Trial Court" with respect to Jalaluddin Khan. Drawing on the decision in Shoma Kanti Sen v. State of Maharashtra and another (2024), Supreme Court found the conclusion of the Trial Court and the High Court to be unreasonable. It did not question the grant of bail to Advocate Nooruddin Jangi by the High Court.   

Supreme Court upholds Patna High Court Order against Order of POCSO Judge, Araria under the Protection of Children from Sexual Offences (POCSO) Act

In Bablu Yadav v. State of Bihar, Supreme Court's bench of Justices Abhay K. Oka and Ujjal Bhuyan passed its judgement on March 1, 2024 in an appeal which arose out of final judgment and order dated April 3, 2023 passed by the Patna High Court in Criminal Appeal (Division Bench) No. 196/2022. 

The appellant had filed his appeal on July 3, 2023. The High Court's bench of Justices A.M. Badar and Sandeep Kumar had concluded that "the accused was not awarded fair trial." It observed, "The manner in which the trial was commenced, conducted and concluded by the learned trial court clearly displays and demonstrates glaring abuse of prescribed procedure of conducting the criminal trial and, therefore, there is no alternative but to direct for De-novo trial of the accused from before the stage of framing of the charge as breach of mandatory provisions of law commenced before framing of the charge causing miscarriage of justice." The High Court's order reads: "I. The impugned Judgment and Order dated 15.12.2021 passed by the learned trial court, i.e., Special Judge, POCSO, Araria in Special POCSO Case No.36 of 2021 between the parties is quashed and set aside. II. The instant Criminal Appeal filed by the accused is partly allowed to the extent indicated herein before. III. Since the trial is vitiated, the matter is remanded to the learned trial court for fresh trial from before the stage of framing of the charge." The order was authored by Justice A.M. Badar.

In its order, Supreme Court has "approved the approach adopted by the High Court." It observed that as far as the conduct of the trial is concerned, the Special Court, pursuant to remand, will have to follow the Code of Criminal Procedure, 1973 (Cr.PC) in its true letter and spirit. The Special Court will have to go by the provisions of Section 309 of the Cr.PC and the other provisions which follow Section 309 in Chapter XXIV of the Cr.PC. It directed the second respondent and the Prosecutor appointed by it to appear before the Special Court on March 15 March, 2024 at 10:30 a.m. 

The Court's direction reads: "On 15th March, 2024, the Special Court shall fix a date for recording of evidence and shall also pass an order of issue of summons to the witnesses, if required, and proceed with the trial as indicated above by following the provisions of Chapter XXIV of the Cr.PC in its true letter and spirit. On the aforesaid date, the Special Court will also grant time of only one week to the second respondent to appoint an Advocate of his choice." On his failure to do so, the Advocate, who was already appointed to espouse the cause of the second respondent, will continue to represent the second respondent. The direction issued vide order dated 6th November, 2023 to the State Government to provide adequate Police protection to the appellant, witnesses in the case, the members of the family of the appellant and the Prosecutrix, will continue to operate till the disposal of the trial. The Appeal has been disposed of.

The appellant had filed an appeal challenging the order passed by Patna High Court and the Special Judge, Araria in the case under Protection of Children from Sexual Offences (POCSO) Act, 2012. The Araria Court had convicted him of the offences. The High Court ordered for de novo trial as the Trial Court failed to follow the due process of law, principles of natural justice and the mandatory statutory provisions under the Cr.P.C.The The appellant had enticed the a 8-year-old victim child. He took her to the shop and then to the ‘Bagaan’. After committing penetrative sexual assault on her, he had absconded. In its judgment, Patna High Court had observed, “In the result, there is no alternative but to hold that the learned trial court has failed to follow due process of law while convicting the accused and imposing him the sentence as indicated in the opening paragraph of this Judgment."